New Gitmo Decision Offers Unusual Insight Into Weakness of Government Evidence

A recent federal court decision that yet another Guantanamo captive’s detention is illegal offers the most detailed picture to date of how the government is struggling, often unsuccessfully, to justify indefinite imprisonments with sometimes thin and unverifiable evidence. The government’s difficulties in proving these cases are likely to persist even if the detainees are moved to U.S. soil or if a new detention review system is created.

The case of Khalid Abdullah Mishal Al Mutairi was decided last week, but was overshadowed by the case of young detainee Mohammed Jawad, which made headlines when the Obama administration dropped its defense of his detention. Unlike in Jawad’s case, the judge evaluating Al Mutairi’s imprisonment issued a lengthy written opinion detailing and eviscerating the government’s evidence.

Al Mutairi’s case was the first to be completed by Colleen Kollar-Kotelly, a judge with considerable national security experience, in the slew of lawsuits brought by some 200 Guantanamo inmates. In these lawsuits, known as habeas corpus petitions, the detainees claim the government wrongly imprisoned them as enemies in the conflict with al-Qaida and the Taliban. The cases have been randomly assigned among the 15 judges of the federal trial court in Washington, D.C.

ProPublica recently examined 31 cases completed since a June 2008 Supreme Court decision empowered federal trial courts to scrutinize and, if called for, overturn presidential detention decisions. Case by case, the judges have been answering core questions that policy experts have addressed in theory: When can the president place someone in preventive detention, and how solid does the evidence need to be? (Our analysis of the cases was co-published as an op-ed by the New York Times.)

Judges have found 28 detainees to be unlawfully held. Nineteen of these men remain jailed at Guantanamo. More lawsuits continue to move ahead.

Al Mutairi’s case, Kollar-Kotelly noted, was "the oldest of the pending Guantanamo Bay habeas cases" – filed on May 1, 2002, but delayed for years while the Bush administration litigated to try to keep the judiciary from vetting detentions imposed by the executive branch.

After reviewing the government’s classified evidence, the judge last week concluded that "there is nothing in the record beyond speculation" that Al Mutairi had "become a part of al Qaida or an associated force of al Qaida," as the government alleged. She ordered the Obama administration to "take all necessary and appropriate steps to facilitate Al Mutairi’s release forthwith."

Her opinion, from which classified information is redacted, hardly paints Al Mutairi to be a beleaguered innocent. He admitted to leaving his native Kuwait for Afghanistan days after the September 2001 attacks, carrying $15,000. He was arrested by Pakistani guards in late 2001 at the Pakistan-Afghanistan border. The judge found Al Mutairi’s explanation of his travels and charitable donations to be filled with "inconsistencies, implausibilities, and in some respects, impossibilities."

But, she said, it was the government’s burden to prove he should be detained as a wartime prisoner – not Al Mutairi’s to prove his innocence. The government’s evidence failed to sway her, because it was sparse and unreliable.

She said some of it was "unfinished" or "raw" intelligence that, by the government’s own admission, had never been "fully analyzed for its ‘reliability, validity, and relevance.’"

A "typographical error in an intelligence report" led the government incorrectly to claim for more than three years that Al Mutairi had manned an anti-aircraft weapon in Afghanistan, the judge wrote. The report had confused Al Mutairi’s internment serial number – a unique identifier assigned each detainee – with that of the person actually suspected of manning the weapon.

Kollar-Kotelly rejected the government’s attempt to prove Al Mutairi had attended a training camp allegedly affiliated with al-Qaida based on "one reference, in a portion of one sentence, in one interrogation report." Her discussion of problems with this evidence is partly redacted, but the viewable portion suggests the source for the report did not clearly identify Al Mutairi as someone he had seen at the camp.

The government gave the judge no reason to think the appearance of Al Mutairi’s name on certain prison lists – parts of the opinion suggest the prison was in Pakistan – meant he was affiliated with al-Qaida, the judge said. "Multiple independent sources" had testified that such lists were collected by guards merely to inform family members of the whereabouts of the incarcerated, and administration lawyers supplied no proof to the contrary.

Judge Kollar-Kotelly is no neophyte in national security matters. Until May she was presiding judge of the Foreign Intelligence Surveillance Court, which secretly decides whether to grant warrants to the Justice Department to spy on persons in the United States believed to be agents of a foreign power. She was appointed to a seven-year stint on that court by the late Chief Justice William Rehnquist, a Nixon and Reagan Supreme Court appointee, in 2002. She dealt in detail with post-9/11 national security matters, personally communicating with Bush Attorney General John Ashcroft and Defense Secretary Donald Rumsfeld.

Among the pieces of evidence the judge rejected in the Al Mutairi case was a passage from an account of the detainee’s own interrogation. The government claimed that he had admitted to fighting with Osama bin Laden in Afghanistan in 1991 – presumably, the judge noted, against allies of the Soviet Union. She said it was implausible that Al Mutairi, who was 16 at the time, would have left his family in Kuwait to do that.

Kollar-Kotelly discussed Al Mutairi’s "agitated" state of mind at the time he gave the statement and says "he appears to have been goaded into making these statements by the linguist in the interrogation room."

During another interrogation, the judge said, an agitated Al Mutairi claimed that "he was Osama bin Laden." She quoted a passage from that interrogation report, which is striking because it reveals the detainee’s seeming frustration and despair over his treatment in U.S. custody:

ISN [Internment Serial No.] 213 was uncooperative. He stated that he wished to be called Osama bin Laden . . . ISN 213 stated he was an enemy of America because Americans had told him so. Americans cursed his parents. Prior to the war, he’d had no problem with Americans. But due to the situation at Guantanamo Bay, Cuba, and legal process being so useless, he might as well be Osama bin Laden, since he was never going to be freed from U.S. custody.

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